dt=book · ported from old Blogger blog

The Public Domain: What does it look like?

I’m reading The Public Domain: Enclosing the Commons of the Mind by James Boyle and just finished Chapter 2 (Thomas Jefferson Writes a Letter).

It’s hard to mentally envision the “public domain” because, while we may think about intellectual property itself, we tend not to conceptualize its opposite, the “outside” of intellectual property. The public domain, Boyle says, is “not some gummy residue left behind when all the good stuff has been covered by [intellectual] property law” (p. 40-41). The public domain is, rather, the vast majority of our culture. (Language itself, for instance, is part of the public domain. You don’t have to buy “English, Professional Edition”; it’s just there for you to use as you wish.)

The whole justification for the government granting copyrights and patents – which are, in effect, monopolies – is to provide a form of “protection” in order to encourage authors and inventors to put forth the time, effort and expense to create new works, and then to receive reasonable recognition and reward in return. But, in summarizing Jefferson’s warning about this protection, such monopolies “should be tightly limited in time and should not last a day longer than necessary to encourage the innovation in the first place.” (p. 21) In other words, some protection may be useful, but it should be as temporary and limited as possible.

This has provided me a metaphorical image. I think the public domain is like a coral reef. The vast, beautiful majority is comprised of long-dead coral animals. On the edges, here and there at any given time, are living coral polyps. The live a little while and then die, their calcified remains adding incrementally to the overall coral reef. The living coral polyps need some protection to do their job. But their lives are temporary. If their lives were permanent, the reef wouldn’t grow. And the collective result of their temporary “production” is the giant, diverse coral reef for others to use and enjoy (ignoring, of course, the tragic ecological threat posed to real coral in the real world).

This is not a perfect metaphor for lots of reasons. But it’s helped me construct a mental image for the public domain: vast, beautiful, diverse. And, to the extent that intellectual property is justified and useful (which is an argument in its own right), it should be limited and temporary in order to enrich our shared public domain as soon as possible.

This is one reason Creative Commons make so much sense. Enabling individual creators to determine for themselves the limits of their copyright is a much more nuanced and efficient way of applying “just the right amount” of protection for each creator’s work. The government’s current one-size-fits-all system is both heavy and ham-handed by comparison. In order to protect the very few creations that might (another argument) warrant extensive protection, it “overprotects” all creative works, and, in so doing, squanders the dynamic potential of our public domain — the “basis for our art, our science and our self-understanding… the raw material from which we make new inventions and create new cultural worlds.” (p. 39)

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